Resumen-Derecho-Tema-10 PDF

RESUMEN-DERECHO-TEMA-10.pdf Anónimo Introducción al Derecho 1º Grado en Administración y Dirección de Empresas Facultad de Economía y Empresa Universidad de Zaragoza Reservados todos los derechos. No se permite la explot...

RESUMEN-DERECHO-TEMA-10.pdf Anónimo Introducción al Derecho 1º Grado en Administración y Dirección de Empresas Facultad de Economía y Empresa Universidad de Zaragoza Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 TEMA 10: CORPORATIONS (2) 10.1 ARTICLES OF ASSOCIATION AMENDMENTS Corporations’ members pass articles of association/ bylaws= regulations for the management of a corporation. Any amendment of the articles of association must meet statutory requirements. 10.1.1 GENERAL PROVISIONS Any amendment of the articles will be within the powers of the general meeting. Exception: directors are competent to change the location of the company’s registered office in Spanish territory. Company’s directors and members can make proposals to amend the articles. They must draft the full text of their proposals. SA→ a written report justifying the proposed amendments must also be submitted. The call notice for the general meeting must refer to the right of all members to examine the full text of the proposed articles of association amendments. SRL→ general meeting resolutions on articles of association amendments will require a qualified majority (non-qualified majority requires that the votes amount to at least one third of the quotas). SA→ majority requirements: - 1st call: share capital or at least 50% - 2nd call: at least 25% (shareholders present amount to more than 25% but less that 50% of share capital, to pass bylaws amendments a majority of at least 2 thirds of share capital must be met) The resolution amending the articles will be recorded in a deed that will be registered at the BR and published in the BORME. 10.1.2 CAPITAL INCREASE - By issuing new quotas or shares. - By raising par value of the already existing ones (all members must consent) - By converting bonds into shares and out of reserves. May be made out of new cash or non-cash contributions to the assets of the company. Non-cash contributions may consist in claims against the firm (debt for equity swaps) Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 May also be made under the companies’ own steam reassigning profits or reserves resulting from the most recently approved balance sheet. A resolution to increase capital must be passed by the general meeting, in accordance with the requirements established for the amendment of the form articles of association. Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. SA→ general meetings may delegate on directors the power: - To indicate the date on which a resolution that has already been adopted to increase capital should be put into effect. - To resolve upon an increase in a company’s capital up to a specific amount or one or more occasions, at such time and amount directors decide. No need of a prior consultation to the general meeting is required in these cases. It is deemed to be unlawful issuing shares or quotas premium/ paid in surpluses= excess amount that the firm receives over the par value of its quotas or shares. The premium must be fully paid at the time of assuming the new quotas or subscribing the new shares. SA→ for the case of cash contributions, shares must be fully paid in beforehand. The increase may take place if the deferred payment does not exceed 3% of the firm’s share capital. For the case of non-cash contributions, a report made by directors must be made available to company’s members at the time of calling the general meeting that must decide upon its convenience. It must describe in detail the contributions, the persons who are to make them, the number and par value of the shares and quotas to be issued and the guarantees to secure that the operation is effectively implemented. The increase may result out of a set-off. Pre-emptive rights= where the share capital increase results in issuing new quotas or shares out of cash contributions, each company’s member is entitled to assume or subscribe quotas or shares in proportion to the par value of those she already holds in the firm. Must be exercised in the foreseen periods of time, never less than one month from the publication of the offer of assumption of new issued quotas or the offer of subscription notice of issued shares in BORME. May be transferred in accordance to the different features regarding quotas and shares transferability. Once the capital increase resolution has be implemented, directors must amend the wording of the articles of association. The capital increase resolution and the instrument implementing it will be registered at the BR. 10.1.3 CAPITAL REDUCTION May result of different reasons. May be made for: Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago Introducción al Derecho Banco de apuntes de la a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 - The purpose of loss se-off. - The constitution or increase of legal or voluntary reserves. - Giving back firms’ members and shareholders the value of their contributions. SA→ may also result in forgiving shareholders’ deferred payment contributions. Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. Decreasing shareholders’ equity can be made by means of: - Share cancellations. - Share repurchases. - Shares pooling. Resolution to reduce capital: capital reduction must be agreed upon by the meeting. This resolution must be passed with the same legal requirements as for articles amendment. It must state: the capital reduction amount, the proceedings to implement the resolution, the implementation period and the sum-if any-to be paid to firms’ members. SRL→ a resolution to reduce capital must be publicized in the BORME and at its web page. If it does not exist, in a newspaper in the province where the company’s registered office is located. When the purpose of capital reduction is loss se-off it will affect all quotas or shares equally in proportion to their face value (loss set-off= to restore balance between share capital and the firm’s net assets) SRL→ loss set-off capital reduction agreements cannot take place where the company has any kind of reserves. SA→ loss set-off capital reduction cannot take place where the firm has voluntary reserves of any kind. Or where its legal reserve, once the reduction is implemented, exceeds 10% of share capital. Capital reduction is mandatory where losses have reduced its net assets under 2 thirds of the firm’s share capital. (for a whole financial year) For the company to be able to distribute dividends after share capital has been reduced, it will be necessary for the legal reserve to amount to 10% of the resulting share capital. Where the resolution for reducing capital with return of contributions value does not affect all quotas the same way, the individual consent of those quotas holder affected is required. Where it does not affect all shares in an equal manner, a separate resolution by the majority of interested shareholders is required. In relation to creditors’ protection mechanisms: SRL→ members are held joint and severally liable for payment of the existing company’s debts prior to the date its capital reduction was implemented. No resolution for capital reduction is to be implemented until 3 Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 months has elapsed after such reduction was notice to the firm’s creditors. During that period of time, creditors may reject the capital reduction implementation unless they are paid or have their credits secured. SA→ creditors have a right to object capital reduction implementation until their credits are secured. For this, their claims must meet 2 requirements: - They must have arisen before the last announce of the capital reduction agreement by the general meeting was made. - Were not due and payable at that time. Where the process of decreasing a company’s shares or quota holders’ equity is made by means of quotas or shares repurchase for later cancellation, the offer for acquisition must be made to all members. Repurchased quotas must be cancelled within 3 years after the date of the offer of acquisition. Repurchased shares must be cancelled within one month of the expiry of the offer period for acquisition. 10.1.4 SIMULTANEOUS CAPITAL REDUCTION AND INCREASE A meeting resolution to reduce capital to an amount under statutory minimum may only be adopted if simultaneously a resolution is reached to transform the company or to increase its share-capital up to an amount greater than or equal to the statutory minimum amount. The effectiveness of the reduction resolutions will be conditioned on implementation of the capital increase resolution. Registration of the reduction resolution at the BR may not be carried out unless the resolutions to transform the company or increase capital and the instrument implementing it, are presented simultaneously. 10.3 MEMBERS AND SHAREHOLDERS WITHDRAWAL AND EXCLUSION Members’ withdrawal is voluntarily. Members’ separation is compulsory. 10.2.1 MEMBERS WITHDRAWAL (SEPARACION DE SOCIOS) Grounds for withdrawal: a distinction is to be made between statutory and articles of association grounds for withdrawal. Statutory grounds for withdrawal→ members and shareholders not voting in favour of the corresponding resolution and non-voting members, will be allowed to withdrawal from a corporation in the following cases: - Replacement or substantial amendment of corporations’ purpose. Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 - Extension of the company’s term. - Company’s reactivation. - Creation or amendment of early release from the obligation to render ancillary performances, absent a contrary provision in the articles. SRL→ members that did not vote in favour of a resolution to amend rules for quotas transferring are also Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. allowed to withdraw from the firm. The consent of all members or shareholders is required to include, amend or not to apply these articles of association grounds for withdrawal. The right of withdrawal has to be exercised by firms’ members within one month of publication of the resolution. 10.2.2 MEMBERS EXCLUSION (EXCLUSION DE SOCIOS) With all members’ consent, exclusion grounds may be included in firms’ articles of association, amended or called off. SRL→ may exclude members that voluntarily breach their ancillary performances undertakings. Members’ expulsion requires a general meeting resolution. The identity of the members voting in favour of the resolution will be recorded on the meeting minutes or on its appendix. A final ruling is requires where a excluded member whose stake in the company is not less than 25% do not agree with the terms her exclusion resolution was made. 10.3 WINDING UP/ LIQUIDATION AND DISSOLUTION 10.3.1 LIQUIDATION/ WINDING UP GROUNDS LSC foresees that corporations may start their winding up proceedings: - As a matter of law. - Showing the existence of legal or by-laws grounds. - Due to a general meeting resolution. Corporations will be wound up as a matter of law on the following cases: - Expiry of the term of duration of the company. Unless the duration had been extended beforehand and the extension had been registered at the BR. - Where one year has elapsed after a statutory requires resolution to reduce capital under the legal minimum figure was passed and the company’s transformation, winding up or share capital increase has not been registered at the BR. Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 The business registrar ex officio or on the initiative of any interested party, will note the winding up as a matter of law in the firm’s open page. Winding up grounds have to be assessed by the meeting or by the Courts. A general meeting must be called prior to winding up upon the existence of statutory or under the articles. It Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. may adopt the winding up resolution or the resolution that may be deemed necessary to remove the grounds for winding up. SRL→ an ordinary majority is required to decide (at least one third of the quotas the firm’s share capital is divided into). SA→ no particular quorum or voting requirements must be met. Where the meeting is not called by firms’ directors, or if a resolution to wind up or to remove winding up ground is not passed, any interested party may apply for winding up at Juez de lo Mercantil in the place where the registered office is located. Directors will be jointly and severally liable for the company’s debts subsequent to the concurrence of legal grounds for winding up. This will be so where: - Directors do not comply with their duties to call a general meeting to decide upon winding-up. - Directors do not file to Court a winding-up opening request or file for a bankruptcy statement where appropriate. Winding up may also result out of a mere resolution of general meeting. The firm’s winding up will be registered at the BR. Business registrars will submit ex officio and at no additional cost notice of the firm’s winding up for its publication in the BORME. Reactivation of wound up companies: the general meeting may resolve to restore the firm to active life. This can be so provided that: - The grounds for winding up have disappeared. - The firm’s book equity is not lower than its share capital. - No surplus after liquidation has already been paid to partners or shareholders. Reactivation decisions may not be agreed upon in cases of winding up as a matter of law. 10.3.2 WINDING UP/LIQUIDATION PROCEDURES Most businesses have long-term obligations to employees, suppliers and customers, landlords and other parties. A company will have to take its time to end these relationships and handle any obligations to stakeholders before it can close its doors. Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 Once a company has wound up its affairs, it can then sell its remaining assets. Some of these assets, may be liquidated as part of the winding up phase. Others, will be sold only after the company has completely gone out of business. During the winding up operations, the firm retains its legal personality. The expression “en liquidacion” must be added to the company’s name. At the request of shareholders representing at least one fifth of the share capital of the firm’s personnel, the Government may order the firm to continue operating in the market. This would be when the Gov appreciates that continuation of a SA is desirable for the national economy or for the general interest. Specifications should be made providing how the firm is to subsist and the amount payable to shareholders. Directors will be removed from office and their powers to represent the company shall be terminated. Liquidators shall act in accordance to statutory provisions. They must see the integrity of firm’s assets until the moment and liquidation and surplus distribution to its members. Where the meeting is to appoint liquidators, those who were directors at the time of the firm’s winding up, will be appointed as liquidators. Liquidators will serve for an indefinite tenure. Liquidators’ authority extends to all necessary transactions to carry out winding up operations. Shareholders representing one twentieth of the firm’s share capital may request the Court for the appointment of an auditor to oversee winding up proceedings. Winding up operations: An inventory and balance sheet for the company must be made. Firms’ credit will be received, and company’s debts paid. Pending shares payment outstanding at the commencement of winding up operations must be made. Liquidators are allowed to dispose of the firm’s assets. They must perform duties as bookkeeping and providing information to firm’s members or shareholders. Once winding up operations are concluded, liquidators will submit for its approval the general meeting: - A final balance sheet. - A report regarding winding up operations. - A division proposal of the remaining assets. Redistribution of assets resulting from liquidation operations: done in accordance with the rules established in the articles or as set by the meeting. Prior payment or consignation of firm’s debts is required before members receive their liquidation shares. Each member’s liquidation share will be in proportion to her interest in the capital. Firm’s members have a right to receive their liquidation quota in cash. Firm’s dissolution: liquidators shall formalize a deed on company termination. The final liquidation balance sheet and the list of members or shareholders shall be attached to the deed. The identity of members and Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 shareholders and the sum awarded to each one of them as liquidation share must be specified. This deed shall be registered at the BR. Liquidators shall deposit all terminated company’s books and documents at the BR. 10.4 BONDS Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. Public limited companies and limited partnerships with shares may issue bonds. Issuance terms and conditions: the creation of a defence association or syndicate of bondholders and the appointment of a trustee who will implement the issue agreement on behalf of future bondholders are required. The total amount issued may not exceed the amount of paid up share capital plus reserves appearing in the last approved balance sheet. Bonds issuance must be passed by the meeting. It must be formalized on a public deed to be registered at the BR. Notice of the issuance will be published in the BORME. Bonds can be represented by means of: - Certificates. - Book entries. A company may issue bonds convertible into shares. The general meeting must determine the required capital increase and the conversion of bonds into shares terms and mechanisms. Convertible bonds shall not be issued for an amount under their face value. Shareholders have pre-emption rights to subscribe convertible bonds. Upon registration of the deed of issuance at the BR, a syndicate of bondholders will be made up. When the bonds issuance has been subscribed, the trustee will call a general meeting of bondholders= “bondholders meeting” will have the power to adopt resolutions. Empowered to reach agreements with the issuer firm regarding the guarantees granted to secure bonds issuance. The trustee will be the chairman of the bondholders syndicate. Her powers are granted by means of: - The issuance deed. - Bondholders general meeting agreements. Trustee= liaison between the firm and the syndicate. In the general meetings, she has a right to speak but not to vote. Informs the issuing firm about bondholders meeting resolutions and is empowered to require from this one info of interest for bondholders. The general meeting of bondholders will: - Approve or disapprove the trustee’s management. Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 - Confirm the trustee in office or appoint a person in replacement. - Establish the internal rules of the syndicate in accordance with the provisions on the deed of issue. The firm may repurchase the bonds issued by means of: - Redemption or early payment in accordance to the deed of issue conditions. - Purchase of the bonds in the stock exchange for their redemption. Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. - An agreement between the company and the bondholders’ syndicate. The firm must pay the amount of the bonds, premiums, lots and benefits established in the issue deed within the term stipulated. 10.5 LA SOCIEDAD NUEVA EMPRESA Company name: shall comprise one of the founding partners’ 2 surnames and given name, followed by an alphanumerical code for unequivocal and unique identification. It must necessarily include “New Limited Business Concern” or its acronym “SLNE”. Only individuals may be members. When the company is formed, this firm may have no more than 5 members. As a result of quotas transfers, SNE may comprise more than 5 partners. The procedures for the formalization and registration of deeds of incorporation may be conducted in a computerized way. Notaries’ and registrars’ mailings and notifications should be electronically authenticated. The business registrar shall assess and register the deed of incorporation within 24 hours of its submission. Share capital may not be less than 3000 nor more than 120000. Only cash contributions can be made. Voluntary inter vivos transfers of stakes may only be transacted between individuals. General meeting may be called by registered mail or by any electronic or digitalized instrument. Company governance may be entrusted to a single or a multiple member body, whose members shall act jointly and severally. Directors must be company members. They shall be appointed indefinitely. SNE→ amendments may only be made to the company’s name or registered office and its capital. May continue to operate as SRL, subject to a general meeting decision and adaptation of their bylaws. The instruments formalizing the adaptation of the company’s bylaws must be submitted for registration at the BR within 2 months of the date of the general meeting’s decision. Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 10.6 SOCIETAS EUROPEA The provisions of Council Regulation, the provisions of LSC and the law regulating worker involvement in European companies shall govern SE with registered offices in Spain. They will be incorporated and have their acts registered at the BR in accordance to the SA’s legal regime. SE must establish their registered offices in Spain when their headquarters are located on Spanish soil. Effective relationship= when the company has offices in the Member State from which it manages its operations and conducts its business. LSC regulates SE incorporation by means of: - A merger. - A holding. - Transformation. SEs with registered offices in Spain may opt for one-or 2-tier governance. If a one-tier administration system is chosen, the provisions of this act for directors of SA shall apply to the governing body. Where a 2-tier system is chosen, the company shall have directors and a supervisory board. The notice calling SE general meetings must be sent at least one month prior the date scheduled for the meeting. Minority shareholders holding at least 5% of the share capital may request the inclusion of items on the agenda of a general meeting after it is called, or ask to have an extraordinary one. 10.7 LISTED COMPANIES Listed companies= companies whose shares are traded in an official secondary securities market. Shares and bonds that are to be listed or continue to trade on an official secondary securities market must be represented by book entries. Pre-emptive subscription rights shall be exercised within the period granted, which shall not be less than 15 days from the date of publication of the announcement of the new share offering in the BORME. Whenever the National Securities Market Commission intervenes in the initial verification of a listed company’s capital increase operation with the issue of new shares, the whole or partial failure of the operation in the form of incomplete subscription must be reported to the Commission. In listed companies, the par value of treasury shares may not exceed 10% of the capital subscribed. The maximum legal limit for bond issues shall not be applicable to listed companies. The regulations for listed companies’ general meetings shall be submitted to the CNMV, together with a copy of any related documentation. Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. a64b0469ff35958ef4ab887a898bd50bdfbbe91a-3406393 - All shareholders of the same status in listed companies shall be guaranteed equal treatment at all times in respect of info, participation and the exercise of voting rights at the general meetings. - Listed companies are required to convene their ordinary or extraordinary general meetings in a manner that guarantees speedy and non-discriminatory access to the info by all shareholders. - Contents of the calling notice. - Info prior to the meeting. Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad. - Right to add new issues to the agenda and to submit proposals. - Exercise of shareholders’ info rights. - Shareholders participation in general meetings. - Appointing proxies legal regime. Clauses in the listed companies articles that directly or indirectly establish a general ceiling on the number of votes that can be cast by a single shareholder, or companies belonging to the same group, or anyone acting in conjunction shall be null and void when the bidder holds 70% or more of the voting share capital. In listed companies, the board of directors shall adopt rules of procedure for its own internal purposes. The CNMV shall be notified of adoption of the rules and receive a copy. Such regulations shall be entered at the BR, and once registered, shall be published by the CNMV. The adoption, extension or amendment of shareholders’ agreements on voting rights in general meetings or condition the free transferability of shares or convertible or exchangeable bonds in listed companies must be reported to the company and to the CNMV. The document containing the shareholders’ agreement must be filed with the BR where the company is registered. Provisions are set regarding listed companies’ financial info duties. Companies whose shares are traded on a regulated market in any European Union Member State may not issue abridge versions of their balance sheets, statements of changes is net equity or income statements. Companies issuing shares traded on a regulated market in any EUMS shall include their corporate governance reports in a separate section of their management reports. Listed companies must meet their info obligations using electronic or digitalized methods. Must have a website where shareholders may exercise their right to info, on which any relevant info required by securities market legislation is carried. The website must include a protected shareholders’ electronic forum, designed to furnish info prior to general meetings. The forum may be used to submit motions intended for tabling and not included on the agenda announced in the meeting notice, requests for support for such motions, initiatives to gain sufficient percentage to exercise the minority rights established by law and the offers or requests for voluntary proxies. The board of directors must establish the info to be provided on the website. Shareholders of listed companies may create specific and voluntary associations for the exercise of their rights and the defence of their common interests. Abre tu Cuenta NoCuenta con el código WUOLAH10 y llévate 10 € al hacer tu primer pago